SURRAYA BIBI vs ABDUR RASHID

' This appeal is directed against an order of the Guardian Judge, Sialkot, whereby he allowed the respondent, Abdul Rashid to have the custody of his minor son, Ghulam Farid, who is now living, with the appellant, Mst. Surraya Bibi. She is his mother. He was born out of the wedlock of the parties which has since come to an end as a result of a decree for dissolution of marriage passed in a suit brought by the appellant.

2. Admittedly, the minor in the present case was more than 7 years old when the respondent had filed application under section 25 of the Guardians and Wards Act, 1890, for securing his custody.

The view taken by the learned Guardian Judge was that since he had crossed the age of seven years, the respondent (lather) was entitled to his custody.

3. Learned counsel for the appellant contended that the respondent had not provided maintenance for the minor during the last seven years or so, which spoke for his lack of interest in the welfare of the minor. The argument proceeds that since the welfare of the minor is the paramount consideration in deciding disputes like one involved in the present case and the respondent did not bother about his welfare for such a long period the order of the learned Guardian Judge was not sustainable.

4. I find on the record copy of the judgment by which the parties marriage was dissolved. It is Exh. P.

3. The decree was passed on the basis of the statements of the parties. Exh. P. 2 is the copy of the statement of the appellant which reads thus :- {{URDU TEXT}} ' It would, therefore, appear that the appellant had herself absolved the respondent of his responsibility to provide maintenance to the minor during' the aforesaid period of seven years for which the minor had remained in her custody.

5. Another plea raised by the learned, counsel for the appellant was that since the minor has lived with the appellant for about seven years and has developed intimacy with her it would not be conducive to his welfare to oblige him to leave her and go to the respondent. It is a cardinal principle of the Muslim Law that after a male child has attained the age of seven years, his father is entitled to have his custody. If the argument of the learned counsel is accepted, it will not be possible to observe the aforesaid principle in any case. This principle has been laid down for the reason that up to the age of seven years a male child needs the tender care of his mother but after he has crossed that age-limit he deserves to be educated and groomed by his father. Needless to say that it is extremely difficult, if not impossible, for a female to watch the activities of a grown-up son and channelize his energies in the right direction especially in the present age when juvenile delinquency is rampant and young boys require strict supervision, day and night, both inside as well as outside the home. This arduous duty can be discharged by the father better than the mother. In this view of the matter, the minor's association with the appellant for about seven years is of little consequence. As explained above, the past association of the minor with the appellant was in pursuance of a mutual agreement between the parties where under the appellant stand committed to hand over the minor to the respondent on his completing the age of seven years.

The said association, therefore, does not divest the respondent of his right to secure the custody his minor son.

6. No other point was canvassed by the learned counsel for the appellant.

7. The appeal, therefore, fails and is dismissed with no order as to costs.